JR (father) v ER

Where sensitive confidential information must be protected in family proceedings, the court has overall control of the litigation process and must take active measures to prevent inadvertent disclosure. A direction merely permitting information to be omitted is insufficient. The court should specify the information to be protected, limit disclosure to what is necessary, establish a secure chain of possession, allocate responsibility to named individuals, and require careful checking. Significant or serious-risk editing should ordinarily be undertaken by two people who understand the case and the information at risk. The procedure must be tailored to the circumstances.

The father applied for contact with his three young children. The mother and children had moved to secret addresses because of the father’s history of harassment, threats and attempts to locate them. An order permitted the mother’s whereabouts and contact details to be omitted from documents, but did not make the restriction mandatory or allocate responsibility for checking documents.

Large volumes of police, social services and medical records were disclosed. Editing errors revealed the mother’s telephone number, new surname and address to the father. The central issue was what procedural safeguards the court should impose where confidential information must be withheld in family proceedings.

1. The court’s responsibility. The court has overall control of the litigation process and a clear responsibility to take all necessary measures to ensure that confidential information is not disclosed as a side-effect of legal proceedings. The inadvertent disclosure in this case constituted a gross breach of the mother’s right to respect for private and family life.
2. Insufficient direction. An order allowing parties to omit addresses and contact details was inadequate. It was not mandatory and did not establish a procedure or identify anyone responsible for ensuring that documents were properly checked. The risk was increased by an unnecessarily broad disclosure exercise involving several hundred pages of material.
3. Future procedure. Where sensitive confidential information is to be protected, the court should identify the case as requiring special restrictions and specify precisely what information must not appear in documents. Before disclosure, the court should consider whether the order is wider than necessary and should specify the chain of possession.
4. Documents should initially be gathered by an appropriately selected party and released only after careful checking. Responsibility should be allocated to one or more named individuals, with an opportunity for the solicitor acting for the person seeking confidentiality to check the edited documents before release. A timetable may be imposed.
5. There should be a second editor where the volume of material is significant or the consequences of disclosure are serious. The editors must know the details of the case, understand exactly what is being protected, and be identified by name where appropriate. Editing is not a merely administrative task that can safely be delegated. The procedure must be tailored to the circumstances.